Friday, January 1, 2010

Types of Custody: Shared Legal - Shared Physical - Shared Residency. Wait...What?!

(See 8/25/11 update at the end of this post.)

Do you and your ex share equal or near equal physical custody of your child(ren)? ... Yes?

Do you support your child(ren) in your household at or near the same level that your ex supports them in hers? ... Yes??

Does your ex now have a household income or lifestyle equal or nearly equal to, or even exceeding yours? ... Yes???

And despite all this, is your household deprived of a huge chunk of your taxable earnings each payday because they’re diverted from your paycheck to her household - tax-free to her? ... Yes????

Are you frustrated by having to support your child(ren) in your household and in hers? ... Hell yes?!!!!

Why are you paying so much?!

Because no one’s ever told you about shared residency! That’s not surprising: we’d never heard of it, either. Not even after 7 years of this crap! Nope...not until I stumbled across the term a couple of weeks ago while researching child support! You got it! My husband’s highly-paid attorney never mentioned it once even though he was granted 46% physical custody! It apparently never occurred to her! (By the way: be sure to see my What Does Child Support Cover? post for a breakdown of just what child support is supposed to be used's eye-opening! And, yes, this is another area that no one--not even my husband's attorney--thought to explain! Ugh!!)

So in addition to shared legal and shared physical custody, my husband has had shared residential custody without knowing that such a thing existed, as we, too, have his kids in our care often enough that we have to buy them furniture, bedding, clothes, shoes, school supplies, over-the-counter medicines, toiletries, laundry and cleaning supplies, etc., etc., etc. In fact, we spend an average of at least $5,000 a year for these types of expenses exclusively...AND we've been paying for 50% of their extracurricular activities...$900 just this year!...because no one has ever explained to my husband that he didn't have to! (I've since learned that, in general, the Court only ever orders the "non-custodial parent" to share in the cost of extracurricular activities if he or she is a millionaire, which we are not!!)

And here’s the kicker: the court has no idea we're doing this (not yet, anyway)! It just never occurred to them that my husband would have to share in these expenses when the kids are at our house for days on end! They just stupidly assumed that their mom would be the only one to incur these types of expenses, and that they would be covered with the child support my husband pays each month. They never once gave a second thought to the fact that my husband would have additional expenses…like clothes for the kids to wear at his house, or tooth brushes and toothpaste to brush their teeth at his house, or beds to sleep in at his house, or…well…you get the picture.

Once the Court is made aware of our situation, my husband's child support obligation will be dramatically reduced—and in all likelihood eliminated!

Craziness, huh?!

So what is shared residency? It's the regular sharing of residential custody on an equal or nearly equal basis. To qualify, two components must exist:
• First, the blocks of time must be regular and equal or nearly equal between the parents throughout the year rather than based on extended visitation (e.g. summer visitation, holidays).
• Second, the parties must be sharing direct expenses of the child on an equal or nearly equal basis, which include (but aren't limited to) clothing and education expenses, but don’t include food, transportation, housing or utilities.

Does this sound like you? Yes? Then I suggest you research this further on your own, and then do something about it (e.g., contact an attorney or your family court's self-help center for advice and assistance).

Let me know if you have any specific questions...I may be able to help. And good luck!

8/25/11 Update: We consulted with my husband's former attorney to discuss shared residential custody (among other issues) and were told that California does not recognize shared residential custody; that guideline child support is based solely on each parent's income. That being said, while I trust my husband's former attorney, I'm not convinced that the information she gave us is accurate. First, when I research an issue, I limit my research to the State of California. Second, it has been our firsthand experience that factors beyond income are considered when setting guideline child support (e.g. percentage of parenting time, income-to-debt ratio). Third, between my extensive research and my personal observations and experiences, I've found evidence that completely contradicts her statement. Obvsiously there is more research to be done on this issue, and I will update this post with my findings. In the meantime, be aware that shared residential custody does exist, and be sure to raise this issue with your ex when discussing a fair support amount (if you're able to work things out between yourselves) or with an attorney if you choose to consult with one. Stay tuned...